Town of Middleboro v. New York, N.H. & H.R.R. Co.

• Decision Date: 10 October 1901
• Parties: TOWN OF MIDDLEBORO v. NEW YORK, N. H. & H. R. R. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 520

61 N.E. 107

TOWN OF MIDDLEBORO

v.NEW YORK, N. H. & H. R. R. CO. et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Oct. 10, 1901.

Case reserved from superior court, Plymouth county; Henry K. Braley, Judge.

Bill by the town of Middleboro against the New York, New Haven & Hudson River Railroad Company and others. Reserved for supreme judicial court. Discharged.

Nathan Washburn, for petitioner.

J. H. Benton, Jr., for defendants.

BARKER, J.

Land owned in fee by the town of Middleboro, part of its municipal gas and electric light plant, has been appropriated to another public use, in proceedings for the abolition of certain grade crossings, under St. 1890, c. 428, and the acts in addition thereto. The value of the land so taken, including the damage to that part of the plant not taken, is a contribution, at the cost of the plaintiff, towards the expense of abolishing the crossings; and if the amount of that contribution cannot be included in the account of expenses, and cannot be decreed to be paid by the railroad company, the commonwealth, and the town in the proportions fixed under the provisions of St. 1890, c. 428, § 3, the town will receive no compensation for this contribution. Such a result is contrary to the general intention of our statutes relating to the exercise of the right of eminent domain, which uniformly make provision for compensation to the owner of the land so taken. It is no less contrary to the general intention of St. 1890, c. 428, which provides for the payment by the commonwealth, the town or city, and the railroad company, in proportions to be fixed in the proceedings, of the total cost of the alterations, including ‘all damages,’ and not merely such damages as can be assessed under the fifth section of the statute. St. 1890, c. 428, § 3. This court has heretofore declared that the general purpose is ‘that the whole cost or expense of the entire work, including the cost of the commission and of the auditor, should be paid by the railroad company, the commonwealth, and the city or town.’ Boston & A. R. Co. v. Inhabitants of Charlton, 161 Mass. 32, 34, 36 N. E. 688. In the present case the defendants contend that the plaintiff can have no compensation for its contribution of the value of that part of its gas and electric light plant taken, or for any damages to what remains of the plant. The contention is not based upon any claim of power in the legislature to compel a municipality to give without compensation its property held for one public use to another such use. See Proprietors of Mt. Hope Cemetery v. City of Boston, 158 Mass. 509, 33 N. E. 695,35 Am. St. Rep. 515. Damages sustained by the taking of land for a public way in proceedings for the abolition of a crossing are to be paid primarily by the city or town. If the parties interested cannot agree upon the damages, the fifth section of the statute says that the city or town or other party may have them determined by a jury at the bar of the superior court, on petition, in the same manner and under like rules of law as damages may be determined when occasioned by the taking of land for the locating and laying out of public ways in such city or town. St. 1890, c. 428, § 5. But in the present instance, as the plaintiff is both the owner of the land taken and the town in which the way is situated, the plaintiff cannot make an agreement with itself, nor can it maintain a petition for its damages, in which petition the town would be the sole petitioner and the sole respondent. Because of the technical difficulty, which precludes, in this instance, the operation of the remedy for damages provided in St. 1890, c. 248, § 5, the auditor has refused to audit and allow the damages sustained by...